INTRODUCTION

The CEFL Principles of European Family Law Regarding Property, Maintenance and Succession Rights of Couples in de facto Unions were published in 2019. They comprise 27 Principles (Principles 5:1–5:27) set out in seven chapters. Chapter I concerns the definitions in and scope of the application of the Principles. Chapter II sets out the general rights and duties of partners in a de facto union. These are mandatory rights and their aim is to be applicable in every de facto union. Chapter III confirms the partners’ private autonomy by promoting agreements between the partners. Chapter IV contains rules on the partners’ property and debts. Chapter V focuses on issues that arise due to the partners’ separation. Chapter VI focuses on corresponding issues that arise in the event of a partner's death. Finally, Chapter VII deals with dispute resolution in respect of de facto unions.

Comparisons between 29 European jurisdictions, reflecting the legal situation until the end of 2014 or January 2015, provided the primary basis for these Principles. The updated national reports3 cover the later legal developments in these jurisdictions until the end 2020/early 2021, with the exception of croatia, czechia, latvia, lithuania, luxembourg, slovakia and switzerland. As a result, it has not been possible to take account of any later developments in these jurisdictions.

Eight of the update reports (belgium, bulgaria, denmark, estonia, hungary, norway, poland and russia) state that no changes of relevance have taken place in legislation or case law. However, in the light of the information in their previous national reports, the current law in most of them recognises de facto unions and provides the partners with certain mutual rights and duties, during the relationship, upon separation or in the case of a partner's death (belgium, bulgaria, denmark, estonia and norway).

In this book we have revisited the Principles of European Family Law by collecting updated comparative material from the CEFL experts, comparing recent developments in the surveyed jurisdictions with each other, identifying trends common to many family systems in Europe and, finally, comparing them with our proposals for how to harmonise the areas of divorce, maintenance between former spouses, parental responsibilities, property relations between spouses, and to issues of property, maintenance and succession rights of de facto unions in Europe.

Revisiting the CEFL Principles of European Family Law has been an exciting enterprise. For the first time we have addressed all five areas covered by the Principles at the same time. Equally, for the first time we have compared the Principles with recent developments in the European jurisdictions surveyed rather than drawing inspiration from comparing the European systems in order to propose our Principles in the first place. In addition, we once again carefully scrutinised almost every one of the Principles, which had been the subject of extensive discussion amongst ourselves and with CEFL experts prior to their initial adoption and publication. Finally, for the first time we have added Charts to our comparative exercise which are a valuable aide-mémoire to recent legislation and whether or not they conform to general trends.

This chapter brings our revisiting project to a close. We begin by recalling our general considerations which accompanied the comparative research-based drafting of the Principles from the very start since 2001.

INTRODUCTION

The CEFL Principles of European Family Law Regarding Property Relations Between Spouses were published in 2013.1 They comprise 58 Principles (Principles 4:1–4:58) contained in three chapters. Chapter 1 provides for the general rights and duties of the spouses. Chapter 2 concerns the principles on matrimonial property agreements. Chapter 3 focuses on matrimonial property regimes and introduces two alternative regimes: participation in acquisitions and community of acquisitions. In drafting these Principles, account was taken of the position in 26 European jurisdictions, reflecting the legal situation as at August 2008 (in some cases until the end of 2008). The updated national reports cover the later legal developments in most of these jurisdictions until the end of 2020/beginning of 2021. Regrettably, no update reports were received from czechia, lithuania, malta, slovakia and switzerland. The update reports of estonia and slovenia, however, provide information on later developments in respect of spousal property relations, even though these jurisdictions were not included in the original national surveys on marital property relations. These two jurisdictions have been included in the following analysis in order to give a broader perspective, and thus a more inclusive comparison, of recent European trends on the regulation of spouses’ property relations.

The update reports show that spousal property relations have been subject to far-reaching legislative reforms, in one way or the other, in a number of the jurisdictions during the period from 2009 to 2019, e.g., in austria (2009), belgium (2018), bulgaria (2009), catalonia (2010), denmark (2017), estonia (2009) hungary (2013), the netherlands (2018) and slovenia (2019).

PREAMBLE

Recognising that, notwithstanding the existing diversities of national family law systems, there is nevertheless a growing convergence of laws;

Recognising that the free movement of persons within Europe is hindered by the remaining differences;

Desiring to contribute to the harmonisation of family law in Europe and to facilitate further the free movement of persons within Europe;

Desiring to balance the interests of spouses and society and to support actual gender equality, taking into account the best interests of children;

The Commission on European Family Law recommends the following Principles:

PART I: DIVORCE

CHAPTER I: GENERAL PRINCIPLES

Principle 1:1 Permission of divorce

• (1) The law should permit divorce.

• (2) No duration of the marriage should be required.

Principle 1:2 Procedure by law and competent authority

• (1) The divorce procedure should be determined by law.

• (2) Divorce should be granted by the competent authority which can either be a judicial or an administrative body.

Principle 1:3 Types of divorce

The law should permit both divorce by mutual consent and divorce without consent of one of the spouses.

CHAPTER II: DIVORCE BY MUTUAL CONSENT

Principle 1:4 Mutual consent

• (1) Divorce should be permitted upon the basis of the spouses’ mutual consent. No period of factual separation should be required.

• (2) Mutual consent is to be understood as an agreement between the spouses that their marriage should be dissolved.

• (3) This agreement may be expressed either by a joint application of the spouses or by an application by one spouse with the acceptance of the other spouse.

AIM AND OBJECTIVE

This book provides an update on recent developments in family law in Europe, predominantly in the areas of divorce, maintenance between former spouses, parental responsibilities, property relations between spouses, and de facto unions. In these areas, the Commission on European Family Law (CEFL) has drafted its Principles of European Family Law, which in turn are based on national reports representing up to 30 European jurisdictions. The total number of jurisdictions varied according to each working field.1 The Principles can be considered as model laws for national legislators in their quest to reform their family law systems. In turn, new family law legislation inspired by the European Family Law Principles2 may contribute to the further harmonisation of family law in Europe. In addition to comparing recent developments among the European jurisdictions, they have been compared with the different sets of our Principles. This comparison is the focus of the present analysis. It was never our intention to rewrite the Principles, but to reflect on them in the light of new developments.

MATERIAL AND METHODOLOGY

The national reports upon which the Principles of European Family Law are based on the law as it stood in September 2002 (Divorce and Maintenance Between Former Spouses), December 2004 (Parental Responsibilities), August 2008 (Property Relations Between Spouses) and February 2015 (de facto Unions), whereas our Principles in these areas were only published in 2004, 2007, 2013 and 2019 respectively.

INTRODUCTION

The CEFL's Principles of European Family Law Regarding Maintenance Between Former Spouses were the second to be drafted and were published together with those regarding divorce in 2004. The Maintenance Principles comprise ten Principles (Principles 2:1–2:10). In drafting those Principles, account was taken of the position in 22 European jurisdictions, based on national reports on the law as it stood at the end of 2002.

In summary, the aim of the Maintenance Principles is to provide a common set of principles covering spousal support after divorce, regardless of whether the divorce is consensual or not. The basic underlying strategy is to limit post-divorce maintenance claims to where the creditor spouse has insufficient resources to meet his or her needs and the debtor spouse has the ability to satisfy those needs. For the most part, post-divorce spousal maintenance is envisaged to be short-term. Allowance is also made for the spouses to make their own maintenance agreement.

The updated reports cover later legal developments until 2020. Unfortunately, no update reports were received from two of the original 22 jurisdictions surveyed (czechia and switzerland). On the other hand, an update report was received from estonia, which was not one of the original jurisdictions surveyed, and that jurisdiction has been included in the following analysis.

INTRODUCTION

The CEFL's Principles of European Family Law Regarding Divorce were the first to be drafted, although they were published together with those regarding Maintenance Between Former Spouses in 2004. The Divorce Principles comprise 10 Principles (Principles 1:1–1:10). In drafting those Principles, account was taken of the position in 22 European jurisdictions, based on national reports on the law as it stood at the end of 2002.

In summary, the underlying strategy of the Divorce Principles is to provide for a simplified non-fault basis upon which divorce can be obtained. A distinction is made between divorce by mutual consent and divorce without the consent of one of the spouses, divorce being easier in the former case than in the latter and immediately available if the parties have been factually separated for six months. In the latter case, divorce is available simply on the basis of factual separation for one year. Various safeguards are in place to safeguard the interests of children under the age of 16 and to give some protection to the economic needs of spouses. An important innovation of the Principles was the removal of any reference to the ‘irretrievable breakdown of the marriage’.

The updated reports cover later legal developments until 2020, though some reference has been made to subsequent developments. Unfortunately, no update reports were received from two of the original 22 jurisdictions surveyed (czechia and switzerland).

Albert Venn Dicey blazed a trail in expounding the principles, laws, and conventions of the British constitution. Those three types of norm are crucial elements in any constitution. In offering fragments of an account of their nature, Dicey was making a significant contribution to analytical jurisprudence, by which I mean the work of clarifying the basic concepts to be used in the general theory of law. Yet he maintained a curiously detached attitude to an academic industry that already went by the name ‘analytical jurisprudence’, which Jeremy Bentham and John Austin had instigated by provoking others to respond to their dramatic utilitarian, empiricist theory of law.

My purpose here is to consider what Dicey said, suggested, and took for granted about the nature of principles, of laws, and of conventions. And I will ask what might best be said about those things for his purpose of explaining the British constitution. Dicey thought that many norms of the United Kingdom constitution are not legal norms, and I will defend this idea and try to explain its import. Non-legal norms are critically important to the constitution: they institute our form of executive government and do much to regulate it. But Dicey quite deliberately focused on law, and sidelined the non-legal. He wrote that ‘the law, not the morality of the constitution [by which he meant, not constitutional conventions], forms the proper subject of legal study’.

INTRODUCTION

Most readings of Dicey's private international law Digest have been fixated on providing a definitive answer to a few questions: whether Dicey was truly a positivist; whether Dicey took ‘the final and decisive step’ in isolating English private international law scholarship from continental European thought; and whether his principle of the recognition of vested rights was a helpful and coherent alternative to theories focused on comity. I argue that reading Dicey's private international law work through these questions is both unhelpful and misleading. As I show in Section 2, these questions are unhelpful because they do not reveal anything of essence about Dicey's thought when asked in the abstract and they are misleading because they encourage us to read Dicey within overly narrow, unrealistic analytical categories.

Instead, in Section 3, I propose that we read Dicey's private international law thought in the penumbra, in other words, in the areas where Dicey seems most uncertain about his own propositions, their context, and their implications, namely questions of empire and gender. However, in encouraging us to look at Dicey's forays into these questions I do not mean to make the implausible claim that Dicey was either a feminist or an anti-imperialist. In other words, the value of reading Dicey in the penumbra of his thoughts on these matters does not rest in his substantive views on gender and empire.

DICEY THE PROFESSOR

On Saturday 21 April 1883, a little over four months after his election as Vinerian Professor of English Law, A. V. Dicey delivered his inaugural lecture in the Hall of All Souls College, under the title ‘Can English Law be Taught at the Universities?’ He gave a strongly affirmative answer to his titular question. Not only was the setting of a university suitable for the teaching of principles of English law, but the subject and the legal profession could, in Dicey's view, flourish only if a professional professoriate were entrusted with the task of identifying, encapsulating, recording and disseminating legal principles for the benefit of those who wished to study law in order to pursue a career in legal practice.

In Dicey's view, the provision of legal education through the universities would secure the following advantages, when compared with the prevailing method of aspiring barristers reading in chambers:

• 1. Teaching law as a whole with each part related to the others.

• 2. Inculcating the habit in students of analysing and defining legal concepts.

• 3. Encouraging students to look upon law as a series of rules and exceptions, and to carefully mark off the exact limits of ascertained principles.

• 4. Bringing about much needed reform of legal literature.

In his famous book, The Law of the Constitution, Albert Venn Dicey asserted that the ‘rule of law’ embraces the idea of ‘equality before the law’. The connection that Dicey drew between legality and equality has inspired both praise and criticism in the century after his death. By placing a conception of equality at the heart of the rule of law, Dicey opened up promising but contested lines of inquiry into the nature of constitutionalism within the common law tradition. Where those lines lead depends, in part, on what Dicey meant by legal equality.

In many jurisdictions today, equality is understood to be a fundamental human right – a right to be free from discrimination based on race, ethnicity, religion, sex, and other grounds, a right that furthers a vision of society in which everyone's equal moral worth is affirmed. The emergence of equality in this sense is usually understood to be part of the social changes that defined the latter half of the twentieth century. Could Dicey, a self-described ‘mid-Victorian’,2 have had anything so modern in mind by ‘equality before the law’? Surely not.

Yet this answer is only partly correct. An exploration of Dicey's work beyond The Law of the Constitution may suggest different perspectives for understanding the connection that he made between legality and equality in his book.

INTRODUCTION

Dicey's account of parliamentary sovereignty is not exactly a neglected aspect of his work. Nevertheless, it bears revisiting. To see why, it will be instructive to bring Dicey's account into contact with two recent developments in UK constitutional law.

The first development is a cluster of cases decided by the Supreme Court that endorse, or appear to endorse, a revisionary understanding of parliamentary sovereignty. According to this understanding, Parliament's sovereignty is encroached on where Parliament is subject to certain kinds of practical pressure in legislating, and where courts interpret statutes by reference to considerations other than the intentions of Parliament.

The second development is the growing role played by the interpretive approach known as the ‘principle of legality’. The principle holds that statutes are to be interpreted so as to be compatible with certain basic constitutional norms, unless they contain especially clear words to the contrary. Judicial reasoning in this vein is hardly new, but the principle has been deployed to particularly striking effect in several recent cases, and has emerged as among the most potent and distinctive judicial techniques in contemporary public law.

These two developments stand in tension. The principle of legality is not well characterised as being limited to divining legislative intentions, and it inevitably exerts pressure on Parliament to legislate compatibly with fundamental constitutional principles. If the Supreme Court's recent, revisionary approach to parliamentary sovereignty is sound, the principle of legality rests on unstable foundations.

In 1907, one G. Locker-Lampson published a survey of Irish history since the 1800 Act of Union, A Consideration of the State of Ireland in the Nineteenth-Century. Ireland before the Union, he wrote, was a sink of Irish poverty and English corruption, where sinecures were secured for those ‘bawds and bastards whom public opinion would have made it dangerous to provide for on the English Pension List’. In 1798, rebellion had been cynically provoked by the government, in a spirit of ‘political malignity’, so that the peasantry, ‘hounded to desperation by a deliberate policy of cruel persecution’, could be crushed in arms. In the subsequent ‘carnival of butchery’ the rebel Irish ‘were drowned in their own revolutionary blood’. The Act of Union, ‘unconstitutional to the core’, was promoted by Prime Minister Pitt's ‘cold, formal, stately verbiage’ and secured by ‘trickery and corruption’. It marked the abandonment of Irish national interests by its land-owning classes, who voted their own parliament out of existence, and thereby became ‘traitors’. The Union was a ‘farce’ and by 1810, relations between Britain and Ireland had become ‘well-nigh insufferable’.

The landed elite, having betrayed their country, ‘severed themselves entirely from the native Irish’, threw in their lot with England, and resisted all reasonable attempts at reform. The legacy of conquest and confiscations had produced ‘perhaps the worst agrarian system the world has ever seen’. The Catholic masses, however, ‘after a period of cruelty, anguish, and hopeless combat that would have crushed into the dumb servility of despair any other race of men … rose from their mother soil … unconquered and proud’.

INTRODUCTION

The 1923 review of the third edition (1922, with Arthur Berriedale Keith) of Dicey's Conflict of Laws in the Harvard Law Review, by the great American scholar of the conflict of laws and author of the First Restatement, Professor Joseph Beale, contains a touching tribute: